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OF THE LAWS OF ENGLAND.
The municipal law of England, or the rule of civil conduct prescribed to the inhabitants of this kingdom, may with sufficient propriety be divided into two kinds: the lex non scripta, the unwritten, or common law; and the lex scripta, the written, or statute law.
The lex non scripta, or unwritten law, includes not only general customs, oi the common law properly so called; but also the particular customs of certain parts of the kingdom; and likewise those particular laws, that are by custom observed only in certain courts and jurisdictions.
When I call these parts of our law leges non scripto, I would not be understood as if all those laws were at present merely oral, or communicated from the former ages to the present solely by word of mouth. It is true indeed that, in the profound ignorance of letters, which formerly overspread the whole western world, all laws were entirely traditional, for this plain reason, because the nations among which they prevailed had but little idea of writing. Thus the British as well as the Gallic Druids committed all their laws as well as learning to memory ;(a) and it is said of the primitive Saxons here, as well as their brethren on the continent, that leges sola memoria et usu retinebant.(b) But, with us at present, the monuments and evidences of our legal customs are contained in the records of the several courts of justice in books of *reports and judicial decisions, and in the treatises of learned sages of the profession, preserved
[*64 and handed down to us from the times of highest antiquity. However, I therefore style these parts of our law leges non scriptæ, because their original iustitution and authority are not set down in writing, as acts of parliament are, but they receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom. In like manner as Aulus Gellius defines the jus non scriptum to be that, which is “ tacito et illiterato hominum consensu et moribus expressum.”
Our ancient lawyers, and particularly Fortescue,(C) insist with abundance of warmth that these customs are as old as the primitive Britons, and continued down through the several mutations of government and inhabitants, to the present time, unchanged and unadulterated. This may be the case as to some; but in general, as Mr. Selden in his notes observes, this assertion must be understood with many grains of allowance; and ought only to signify, as the truth seems to be, that there never was any formal exchange of one system of laws for another; though doubtless, by the intermixture of adventitious nations, the Romans, the Picts, the Saxons, the Danes, and the Normans, they must have insensibly introduced and incorporated many of their own customs with those that were before established; thereby, in all probability, improving the texture and wisdom of the whole by the accumulated wisdom of divers particular countries. Our laws, saith Lord Bacon,(d) are mixed as our language; and, as our language is so much the richer, the laws are the more complete.
And indeed our antiquaries and early historians do all positively assure us, that our body of laws is of this compounded nature. For they tell us that in the time of Alfred the local customs of the several provinces of the kingdom were grown so various, that he found it expedient to compile his Dome-Book, or Liber Judicialis, for the general use of the whole kingdom. *This book
[*65 is said to have been extant so late as the reign of King Edward the
(Caes. de B. G. lib. 6. c. 3.
(c) C. 17.
Fourth, but is now unfortunately lost. It contained, we may probably suppose, the principal maxims of the common law, the penalties for misdemesnors, and the forms of judicial proceedings. Thus much may at least be collected from that injunction to observe it, which we find in the laws of king Edward the elder, the son of Alfred.(e) "Omnibus qui reipublicæ præsunt etiam atque etiam mando, ut omnibus æquos se præbeant judices, perinde ac in judiciali libro (Saxonice, dom-bec) scriptum habetur: nec quicquam formident quin jus commune (Saxonice, folcrıhte) audacter libereque dicant.”
But the irruption and establishment of the Danes in England, which followed soon after, introduced new customs, and caused this code of Alfred in many provinces to fall into disuse, or at least to be mixed and debased with other laws of a coarser alloy; so that about the beginning of the eleventh century there were three principal systems of laws prevailing in different districts: 1. The Mercen-Lage, or Mercian laws, which were observed in many of the midland counties, and those bordering on the principality of Wales, the retreat of the ancient Britons; and therefore very probably intermixed with the British or Druidical customs. 2. The West-Saxon Lage, or laws of the West Saxons, which obtained in the counties to the south and west of the island, from Kent to Devonshire. These were probably much the same with the laws of Alfred abore mentioned, being the municipal law of the far most considerable part of his dominions, and particularly including Berkshire, the seat of his peculiar residence. 3. The Dane-Lage, or Danish law, the very name of which speaks its original and composition. This was principally maintained in the rest of the midland counties, and also on the eastern coast, the part most exposed to the visits of that piratical people. As for the very northern provinces, they were at that time under a distinct
government.(f) *Out of these three laws, Roger Hoveden(9) and Ranulphus Cestrensisch)
inform us, king Edward the confessor extracted one uniform law, or digest of laws, to be observed throughout the whole kingdom ; though Hoveden, and the author of an old manuscript chronicle,(i) assure us likewise that this work was projected and begun by his grandfather king Edgar. And indeed a general digest of the same nature has been constantly found expedient, and therefore put in practice by other great nations, which were formed from an assemblage of little provinces, governed by peculiar customs, as in Portugal, under king Edward, about the beginning of the fifteenth century:(k) in Spain under Alonzo X., who, about the year 1250, executed the plan of his father St. Ferdinand, and collected all the provincial customs into one uniform law, in the celebrated code entitled Las Partidas :(l) and in Sweden, about the same æra, when a universal body of common law was compiled out of the particular customs establisher!
() C. 1.
Hal. Hist. 55.
In Hen. II.
(1) In Seld. ad Eidmer, 6.
Both Hallam and Turner doubted the fact that such a work ever existed. It has, however, recently been brought to light, and may be seen, in both Saxon and English in “The Ancient Laws and Institutes of England,” published by the Record Commissioners, vol. i. pp. 45–101. At the head of it stand the Ten Commandments, followed by many of the Mosaic precepts, with the express and solemn sanction given them by our Saviour in the Gospel:—"Think not that I am come to destroy the law or the prophets: I am not come to destroy, but to fulfil.” After quoting the canons of the apostolical council at Jerusalem, Allred refers to the divine commandment, “ As ye would that men should do to you, do ye also to them," adding, “from this one doom, a man may remember that ho judge every one righteously: he need heed no other doom-book.” A noble and affecting incident this in the history of our laws,—which, though since swollen into an enormous bulk and complexity and fed from many sources, still bear the same relations to religion, which we observe in the rude and simple elements of these laws in the days of our illustrious Alfred. The work, however, is little more than a collection of punishments for offences, and has no pretensions to be regarded as a general systom of municipal law.-WARREN.
by the laghman of every province, and entitled the land's lagh, being analogous to the common law of England.(m)?
Both these undertakings of king Edgar and Edward the confessor seem to have been no more than a new edition, or fresh promulgation, of Alfred's code or dome-book, with such additions and improvements as the experience of a century and a half had suggested; for Alfred is generally styled by the same historians the legum Anglicanarum conditor, as Edward the confessor is the restitutor.' These, however, are the laws which our histories so often mention under the name of the laws of Edward the confessor, which our ancestors struggled so hardly to maintain, under the first princes of the Norman line; and which subsequent princes so frequently promised to keep and restore, as the most popular act they could do, when pressed by foreign emergencies or domestic discontents. These are the laws that so vigorously withstood *the repeated attacks of the civil law, which established in the twelfth century a new Roman em
[*67 pire over most of the states of the continent; states that have lost, and perhaps upon that account, their political liberties : while the free constitution of England, perhaps upon the same account, has been rather improved than debased. These, in short, are the laws which gave rise and original to that collection of maxims and customs which is now known by the name of the common law; a name either given to it in contradistinction to other laws, as the statute law, the civil law, the law merchant, and the like; or, more probably, as a law common to all the realm, the jus commune, or folcright, mentioned by king Edward the elder, after the abolition of the several provincial customs and particular laws before mentioned."
But though this is the most likely foundation of this collection of maximns and customs, yet the maxims and customs, so collected, are of higher antiquity than memory or history can reach : nothing being more difficult than to ascertain the precise beginning and first spring of an ancient and long established custom. Whence it is that in our law the goodness of a custom depends upon its having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary. This it is that gives it its weight and authority: and of this nature are the maxims and customs which compose the common law, or lex non scripta, of this kingdom 6
(m) Ibid. xxxiii. 21, 58.
? The commentators on the old French law cite Littleton for illustration; and, for the same reason, the antiquarian lawyer will cite Les Coutumes de Beavoisis, collected by Beaumanoir, first printed at Bourges, 1690, for the purpose of illustrating Littleton. Beaumanoir's compilation was made long antecedent to our venerable author, or, as he has been called, father of our law.-LEE.
* To assign, however, to the common law no other original than this, would be to take an imperfect and erroneous view of the subject. Our system of tenures was chiefly con structed, if not first founded, by the Norman conqueror; our judicial forms and pleadings, while they have nothing in common with the Anglo-Saxon style, are in striking conformity with the Norman; and it has been remarked with great truth that the general language of our jurisprudence and its terms of art are exclusively of French extraction. (Crag. Jus. Feud. I. 1, d. 7.) We cannot hesitate, therefore, to recognise in the ancient law of Normandy another parent of the common law, and one from which it has inherited some of its most remarkable features.--STEPHEN.
* The student who may be desirous of pursuing this investigation further may add to his own conjectures those of Dr. Wilkins, in his code of ancient laws; Selden, in his Notes on Eadmer; and of Garberon, editor of the works of Anselm.—LEE.
6 What Lord Hale says is undoubtedly true, that “the original of the common law is as undiscoverable as the head of the Nile." Hist. Com. Law, 55.-CHRISTIAN.
6 There is no common law of the country designated geographically as the United States. The Union is composed of sovereign and independent States, each of which may have its local usages, customs, and common law. There is no principle which pervades the Union and has the authority of law that is not embodied in the constitution and acts of Congress. As the federal government has no powers not specially delegated, and no jurisdiction over the regulation of real and personal property, nor over crimes, except such as relate to federal subjects, the common law neither is, nor could it by legislative adoption be made, a part of the federal system.
This unwritten, or common, law is properly distinguishable into three kinds : 1. General customs; which are the universal rule of the whole kingdom, and form the common law, in its stricter and more usual signification. 2. Particular customs; which, for the most part, affect only the inhabitants of particular districts. 3. Certain particular laws; which, by custom, are adopted and used by some particular courts, of pretty general and extensive jurisdiction.
*I. As to general customs, or the common law, properly so called; this 68*]
is that law, by which proceedings and determinations in the king's ordinary courts of justice are guided and directed. This, for the most part, settles the course in which lands descend by inheritance; the manner and form of acquiring and transferring property; the solemnities and obligation of contracts; the rules of expounding wills, deeds, and acts of parliament; the respective remedies of civil injuries; the several species of temporal offences, with the manner and degree of punishment; and an infinite number of minuter particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires. Thus, for example, that there shall be four superior courts of record, the Chancery, the King's Bench, the Common Pleas, and the Exchequer;-that the eldest son alone is heir to his ancestor;—that property may be acquired and transferred by writing ;-that a deed is of no validity un. less sealed and delivered ;—that wills shall be construed more favourably, and deeds more strictly ;—that money lent upon bond is recoverable by action of debt;—that breaking the public peace is an offence, and punishable by fine and imprisonment :-all these are doctrines that are not set down in any written statute or ordinance, but depend merely upon immemorial usage, that is, upon common law, for their support.
Some have divided the common law into two principal grounds or foundations: 1. Established customs; such as that, where there are three brothers, the eldest brother shall be heir to the second, in exclusion of the youngest : and 2. Established rules and maxims; as, “that the king can do no wrong, that no man shall be bound to accuse himself,” and the like. But I take these to be one and the same thing. For the authority of these maxims rests entirely upon general reception and usage: and the only method of proving, that this or that maxim is a rule of the common law, is by showing that it hath been always the custom to observe it.
*But here a very natural, and very material, question arises : how are 69*]
these customs or maxims to be known, and by whom is their validity
It is true that the common law was the substratum of the jurisprudence of the thirteen States by whom the constitution of the United States was at first adopted. The men by whom it was framed had been educated under that system, and many of them lawyers. No doubt, upon the commonly-received principles of interpretation, the language of that instrument, and the technical terms employed in it, are to be construed by the common law. Of the remaining States, Vermont was formed out of territory originally belonging to New Hampshire, and Maine from Massachusetts. Of the States which have since acceded to the Union, Kentucky, Tennessee, Ohio, Indiana, Mississippi, Illinois, Alabama, Michigan, Wisconsin, Iowa, comprise territory which originally belonged to one or more of the thirteen States and was ceded by them to the United States. Louisiana, Missouri, and Arkansas were formed out of territory ceded to the United States by France by the treaty of April 30, 1803. Florida was formed out of territory ceded by Spain by the treaty of February 22, 1819. Texas, an independent republic, but originally one of the United States of Mexico, was received into the Union by a joint resolution of Congress, approved March 1, 1845. California was formed of part of the territory ceded to the United States by the Mexican Republic by the treaty of Guadaloupe Hidalgo, February 2, 1848.
In Texas, Missouri, Arkansas, and California, the common law has been adopted ty express legislative enactment, so that Louisiana is the only State in which any other law prevails. In that State the law of France, which is the Roman civil law with such modifications as obtained at the time of her purchase, is the foundation of her jurisprudence; for it is a well-settled principle of international law, that whenever a country is conquered by or ceded to another, the law of that country as it was at the time of its ression or conquest remains until it is changed by its new master.-SHARSWOOD.
to be determined ? The answer is, by the judges in the several courts of justice. They are the depositaries of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. The knowledge of that law is derived from experience and study; from the “viginti annorum lucubrationes," which Fortescue(n) mentions; and from being long personally accustomed to the judicial decisions of their predecessors. And indeed these judicial decisions are the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form a part of the common law. The judgment itself, and all the proceedings previous thereto, are carefully registered and preserved, under the name of records, in public repositories set apart for that particular purpose; and to them frequent recourse is had, when any critical question arises, in the determination of which former precedents may give light or assistance. And therefore, even so early as the conquest, we find the "præteritorum memoria eventorum" reckoned up as one of the chief qualifications of those, who were held to be “legibus patriæ optime instituti.”(6) For it is an established rule to abide by former precedents, where the same points come again in litigation : as well to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from according to his private sentiments : he being sworn to determine, not according to his own private judgment, but according to the known laws and castoms of the land ; not delegated to pronounce a new law, but to maintain and expound the old one. Yet this rule admits of exception, where the former determination is most evidently contrary to reason; *much more if it be clearly contrary to the divine law. But even in such cases the subsequent judges do not
[*70 pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust," it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined. And hence it is that our lawyers are with justice so copious in their encomiums on the reason of the common law; that they tell us, that the law is the perfection of reason, that it always intends to conform thereto, and that what is not reason is not law. Not that the particular reason of every rule in the law can at this distance of time be always precisely assigned; but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the law will presume it to be well founded.(p) And it hath been an ancient observation in the laws of England, that whenever a standing rule of law of which the reason perhaps could not be remembered or discerned, hath beer
(8) Cap. 8.
(P) Herein agreeing with the civil law, Ff. 1, 3, 20, 21. * Non omnium, quæ a majoribus nostris constituta sunt,
ratio reddi potest. Et ideo rationes eorum, quæ constituuntur, inquiri nom oportet : alioquin multa ex his, quæ certa sunt, subvertuntur."
? But it cannot be dissembled, that both in our law, and in all other laws, there are decisions drawn from established principles and maxims, which are good law, though such decisions may be both manifestly absurd and unjust. But notwithstanding this, they must be rigorously adhered to by the judges in all courts, who are not to assume the characters of legislators. It is their province jus dicere, and not jus dare. Lord Coke, in his enthusiastic fondness for the common law, goes farther than the learned commentator: he lays down, that argumentum ab inconvenienti plurimum valet in lege, because nihil quod est inconveniens est licitum. Mr. Hargrave's note upon this is well conceived and expressed :* Arguments from inconvenience certainly deserve the greatest attention, and, where the weight of other reasoning is nearly on an equipoise, ought to turn the scale. But if the rule of law is clear and explicit, it is in vain to insist upon inconveniences; nor can it be true that nothing which is inconvenient is lawful, for that supposes in those who make laws a perfection which the most exalted human wisdom is incapable of attaining, and would be an invii cible argument against ever changing the law.” -Harg. Co. Lit. 68. -CARISTIAN